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1. The following terms and conditions apply to all present and future business relations between KTR (also called "supplier") and entrepreneurs in the sense of § 14 BGB (hereinafter called "customer" or "purchaser"). Verbal subsidiary agreements, assurances or guarantee declarations as well as exclusion, amendments or supplements to these terms and conditions require KTR's express written confirmation to become effective. This also applies to the waiver of this written form requirement. The validity of the customer's general terms and conditions is herewith also objected to in case these are transmitted to KTR in a letter of confirmation or in any other way.
2. Orders become binding only by KTR's order confirmation. If the customer does not object to the content of the order confirmation within 7 days after receipt, the contract will be concluded according to the terms and conditions stated therein, even if they deviate from the original agreements due to transmission, comprehension or spelling mistakes. Amendments and supplements shall be made in text form. All offers are subject to change unless they are designated as firm offers. Unless expressly designated as binding, indications of quantities or sizes are non-binding approximate values.
1. The prices are ex works (without statutory value added tax), excluding freight, customs, export and import duties and packaging. Unless otherwise agreed in writing, shipment by KTR will be "ex works" place of delivery Werk Hamburg, Schnackenburgallee 42-44 (EXW) in accordance with the agreements according to the International Commercial Terms 2020. The packaging of the goods will not be taken back.
2. Unless otherwise agreed with the customer, KTR is bound for 30 calendar days from the date of the offer. For tools the binding period is 3 months.
3. The prices are fixed in EURO. The prices stipulated in the offer are decisive, if offer prices are not available, the prices of KTR valid on the day of delivery apply. If the expected delivery time is more than 6 months, KTR is allowed to make a price reservation as follows: in such cases the parties are aware that the prices for the products offered can change considerably due to current developments. If after the submission of the offer the purchase prices for KTR at the time of the submission of the offer increase or decrease by more than 5%, KTR is entitled to adjust the price by this factor. KTR has to explain the price fluctuations in detail.
4. KTR is not bound to previous prices for follow-up orders.
III. Delivery conditions
1. The delivery period shall commence after receipt of all documents required for the execution of the order and the agreed down payment. If the customer has to deliver materials or tools, the period shall not begin to run before their complete receipt. Unless prescribed by the customer, the shipping route and shipping method shall be chosen at our best discretion.
2. The delivery period stated in the offer can usually be met if the order is placed immediately; the actual delivery period can only be determined when the order is received.
3. Even if carriage paid delivery has been agreed, the risk shall pass to the customer at the latest when the goods leave the delivery works. In the event of a delay in dispatch due to the customer's conduct, the risk shall pass to the customer upon notification of readiness for dispatch.
4. If an agreed delivery time is not kept due to KTR's fault, the customer is entitled - provided that there is no gross negligence and/or intentional behaviour of KTR - to withdraw from the contract or to claim compensation for delay after expiry of a reasonable grace period. Further claims are excluded. The compensation for delay is limited to a maximum of 5% of the order value of the delivery which has not been made according to the contract.
5. Partial deliveries are permissible. KTR reserves the right to deliver up to 10% above or below the ordered quantities.
6. Unless otherwise agreed between the parties, KTR is entitled in the case of call-off orders to demand acceptance of the quantities not yet called off at the latest after the expiry of 3 months from the date of the agreed delivery time, setting a 14-day period of grace, at its option, and to invoice these or to reject the delivery and claim damages for non-performance.
7. Circumstances of force majeure beyond KTR's control which make performance temporarily impossible or otherwise impede it, such as strikes, war, warlike conditions, blockades, import and export restrictions, official measures, shortage of energy or raw materials, pandemics, exit restrictions and the like, even if they occur during delay, entitle KTR to postpone delivery for the duration of this event. If such events lead to the fact that the fulfilment of the contract becomes economically and organisationally unreasonable for KTR, KTR is entitled to withdraw from the contract in whole or in part. The right to postpone the delivery or to withdraw from the contract exists irrespective of whether the circumstances listed above occur at the place of delivery or at a supplier of KTR. The exercise of these rights by KTR does not entitle the customer to claim damages. KTR will immediately notify the customer of the circumstance of force majeure, the customer may request KTR to declare within 2 weeks whether it wants to withdraw or to deliver within a reasonable period of grace.
8. In case of default of acceptance by the customer, KTR is entitled to store the customer's goods. The customer will reimburse all costs for this to KTR. Instead of storing the goods in case of default of acceptance by the customer, KTR can also choose a penalty for default which is herewith deemed to be agreed: from default of acceptance 0.25% of the order value for each started calendar day of delay, in total not more than 5% of the total value of the order. The agreement of the contractual penalty or its assertion does not affect the other legal claims KTR is entitled to because of delay. Any contractual penalties paid are to be set off against claims for damages.
IV. Terms of payment
1. All payments are to be made in € (EURO) exclusively to KTR. The customer has to pay the invoice amount without deduction within 21 calendar days from the invoice date. The terms of payment agreed in the tool supply contract apply to tools.
2. Cheques or bills of exchange shall only be accepted with express prior written agreement and only on account of performance. All costs associated with them shall be borne by the customer.
3. The customer shall only be entitled to any statutory right of set-off in respect of undisputed, legally established or ready-for-decision claims.
4. The customer is only entitled to a possible legal right of retention, e.g. due to defects of the item, in view of such claims which are undisputed, legally established or ready for decision and which originate from the same contractual relationship with KTR.
5. In case of default with more than one liability or of circumstances which give rise to serious doubts about the customer's creditworthiness, KTR is entitled to immediately call in all claims. Furthermore, KTR is entitled in this case to demand advance payments for deliveries still outstanding and to withdraw from the contract after a reasonable period of time has expired without success.
V. Execution of the order
1. In principle, the ordered product is manufactured according to the components specified by the customer ("Build to Print"). The customer has to define the requirements, conditions of use and physical properties of the product and informs KTR about the mechanical and static loads.
2. All other properties of the ordered product, in particular its future usability, certain requirements for use and load, etc. are not warranted. Possible tests are only to be carried out by KTR and are subject of the order (quality assurance agreements, quality specifications, etc.) if they are agreed separately in writing between KTR and the customer.
3. The suitability of the material for certain regulated applications, e.g. contact with food or for medical technology, must be checked in advance by the customer on his own responsibility.
4. Recycling raw materials are carefully selected by KTR according to the customer's specifications. The customer is aware and accepts that recycling raw materials are also subject to major variations in surface quality, colour, smell and physical or chemical properties from batch to batch. This does not entitle the customer to give notice of defects to KTR.
VI. Defects of the delivery
1. The outturn samples which KTR has submitted to the customer for testing are decisive for the quality and design of the products. The customer alone is responsible for the constructionally correct design of the products as well as for their practical suitability, even if KTR gave advice on the design of the component suitable for injection moulding. Any quality guarantees must be expressly agreed in writing. The tolerances customary in the plastics injection moulding industry apply unless otherwise agreed. Minor deviations in coloured products shall not be considered as defects.
2. Justified notices of defects must be sent immediately, at the latest within 8 days after receipt of the delivery at the place of destination, otherwise the goods shall be deemed to have been approved. A defect shall also be deemed to be the absence of such properties which have been expressly warranted in writing. Notices of defects do not cause any changes in the agreed terms of payment. If a notice of defects proves to be justified, KTR will replace the goods free of charge by repair or new delivery or credit the invoice amount or the reduced value. Further claims of the customer of any kind, especially for compensation of lost profit or compensation of consequential harm caused by a defect, only exist within the scope of the regulation under VIII. Any replaced goods become the property of KTR and have to be returned on demand and at the expense of KTR.
3. Unauthorised reworking will result in the loss of all claims for defects against KTR. Wear and tear are not covered by the warranty.
4. Claims under a right of recourse pursuant to §§ 478, 479 of the German Civil Code (BGB) shall only exist if the claim by the consumer was justified and only to the extent provided by law.
5. Claims of the customer due to defects become time-barred. This does not apply in case of intent or fraudulent concealment of the defect or in case of deviation from any quality or durability guarantees assumed by KTR according to § 443 BGB. This one-year limitation period is also not applicable to claims for damages due to defects if the damage is based on gross negligence of KTR's legal representatives or executives or if it is a matter of personal injuries. The statutory provisions on the limitation of possible recourse claims according to § 479 BGB (German Civil Code) as well as on the limitation and exclusion periods according to the Product Liability Act remain unaffected.
VII. Limitations of liability
1. KTR is liable for damages caused by intent or gross negligence of its legal representatives or executive employees as well as for personal injuries according to the legal provisions.
2. In case of negligently caused damage to property and financial losses as well as in case of intent or gross negligence of simple vicarious agents, KTR or its vicarious agents are only liable in case of a violation of an essential contractual obligation, but the amount is limited to the damages foreseeable and typical for the contract at the time of conclusion of the contract. Essential contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. In this liability of KTR all claims of the customer for compensation of direct or indirect damage (e.g. damage caused by interruption of business, loss of profit, consequential damage) - irrespective of the legal ground including possible claims for compensation due to violation of pre-contractual obligations as well as tort - are excluded.
3. The legal liability due to the absence of a quality guaranteed by KTR or according to the product liability law remain unaffected.
VIII. Retention of title
1. KTR reserves the title to the delivered goods until all claims against the customer resulting from the entire business relationship have been fully satisfied. This retention of title also extends to the new product produced by processing the delivered goods or combining them with other parts (no acquisition of ownership by the customer according to § 959 BGB). In case of connections with foreign material the provisions of §§ 947/ 948 BGB (German Civil Code) apply with the consequence that KTR's co-ownership share in the new product is now considered as reserved goods in the sense of these conditions. In case of resale of the new product by the customer, the purchase price claim to which the customer is entitled from the resale takes its place by way of security. The reseller (customer) already now assigns to KTR the claims existing for him from such sales with all ancillary rights. On request, the customer is also obliged to give KTR a written special assignment about these claims. If the securities exceed the claims of KTR by more than 20%, KTR is obliged to release the exceeding part of the securities to which it is entitled to the customer. The customer has to be informed immediately about seizures and other endangerments of KTR's property. The customer bears the costs of interventions.
2. Non-compliance with the terms of payment or circumstances which become known to KTR after the respective conclusion and which are suitable to reduce the creditworthiness of the buyer result in the maturity of all claims of KTR and entitle KTR to carry out still outstanding deliveries only against advance payment, as well as to withdraw from the contract after a reasonable period of payment. or to claim damages due to non-performance while rejecting the delivery.
3. Goods abroad: If the delivery item is located abroad and if the delivery item was delivered before payment of all amounts owed under the contract, it shall remain the property of the supplier until payment is made in full, insofar as this is permissible under the law in whose area the delivery item is located. If the latter does not permit the retention of title, but does permit the retention of other rights to the delivery item, the supplier may exercise all rights of this kind, e.g. it may also be entitled to a right of lien. The customer is obliged to support the supplier, if necessary, in the assertion of rights of the kind mentioned above in this clause without delay on request. He shall also cooperate if registrations or other measures are required for the effectiveness of the retention of title.
1. The price for the tools (moulds) does not include the sampling costs, the costs for testing and processing devices as well as changes initiated by the purchaser.
2. The tools (moulds) which are made by KTR or by third parties on behalf of KTR for the execution of orders of a customer or which are provided by the customer remain in the custody of KTR (agreement of a right of possession for KTR). The customer and KTR hereby conclude a custody agreement with the transfer of the tools to KTR according to the conditions mentioned here. KTR is obliged to keep and maintain the tools free of charge with the same care as in its own affairs. Necessary measures of maintenance and servicing of the tool are at the customer's expense. Tools according to the customer's drawing or sample shall be used exclusively for the customer's orders; they may not be passed on to third parties. Exceptions require the written approval of the customer.
3. KTR's custody obligation expires three (3) years after the end of the year (31.12.) in which the last delivery of parts from a tool of KTR to the customer was made.
4. If the customer fails to collect the tool after KTR has requested him to do so, KTR is released from any liability for the tool. In this case the customer already now gives his consent to the destruction of the tool by KTR free of charge. Alternatively, KTR is entitled to charge reasonable storage costs for the further storage of the tool.
5. Costs for tool changes that have to be made at the request of the customer shall be borne by the customer.
6. Guarantees and warranted characteristics concerning the tool expire if it is moved outside KTR or transferred to the customer at the customer's request. 7. KTR reserves the right to produce the tool or parts thereof at a manufacturer/subcontractor certified by KTR.
X. Materials provided
If reinforcement parts, e.g. metal parts to be pressed in or injected, are delivered by the customer, he is obliged to deliver them free to KTR's works with a surcharge of 5-10% depending on the agreement for possible rejects, in due time, in perfect condition and in such quantities that KTR is able to process them without interruption.
XI. Property rights
1. If KTR has to deliver according to drawings, models or samples of the customer, the customer is responsible for the fact that industrial property rights of third parties are not infringed by this. He has to indemnify KTR from claims of third parties. If KTR is prohibited from manufacturing or delivering by a third party with reference to an industrial property right belonging to him, KTR is entitled - without checking the legal situation - to stop the work and to demand compensation for the costs incurred.
2. The drawings and samples handed over to KTR will be returned on request; otherwise KTR is entitled to destroy them 3 months after submission of the offer, unless they result in orders or contracts.
3. KTR is entitled to the copyrights and, if applicable, industrial property rights, in particular all rights of use and exploitation of the models, moulds, devices, drafts, drawings, tools and computer designs designed by it or by third parties on its behalf.
XII. Jurisdiction and applicable law
Place of performance for all obligations arising from this contract is the registered office of KTR. Place of jurisdiction for both parties is the district court or regional court in Hamburg. The law of the Federal Republic of Germany applies. The UN Convention on Contracts for the International Sale of Goods is excluded.